BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides answers to your pressing HR questions.
Question: Should we set a “probationary period” for our new employees?
Answer: Some employers set a probation period for new hires as a time to evaluate the employee’s skills for the position and compatibility with the company. This could be called a probationary, introductory, trial or training period and typically lasts 90-180 days.
I would discourage the use of a probationary period because they are often misunderstood, which can have legal implications. Employees often believe that once they have successfully completed the probationary period, they are now a “permanent” employee. Permanent employee status infers job security which is inconsistent with “at-will” employment.
Employment is at-will, which means an employee can be terminated, or can resign, at any time, for any (lawful) reason or no reason. A probationary period policy may interfere with an employer’s right to terminate employees. A poorly written, or implemented, policy may not preserve the at-will status. This can lead to an increased risk of wrongful termination claims. Lawyers regularly argue that the completion of a probationary period changes at-will status and many courts have ruled that after completing a probationary period, there was an implied contract of employment and employees can no longer be fired at-will.
A waiting period for employees to be eligible for health benefits and paid time off, can accomplish the same goals while maintaining at-will status.
Your handbook should make it clear to employees that they are employed at-will and have no contractual rights.
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Have a question for Lisa? Email her directly.
DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion